FA 655 of 2012   against CC 31/2011    on the file of the District Consumer Forum II, Chittoor District at Tirupati.

Between :

1.    The Chairman-cum-Managing Director

APSPDCL Kesevayanagunta

Tirupati.

2.    The Superintendent Engineer ( Operation )

A.   P. southern Power Distribution Company Ltd

Tirupati

3.    The Divisional Engineer,

A.P. southern Power Distribution Company Ltd

Vijayapuram Post and Mandal

Chittoor Distrit.

4.    The Asst. Divisional Engineer ( Operation )

APSPDCL, Vijayapuram Post and Mandal

Chittoor District.

5.    The Assistant Engineer ( Operation )\

APSPDCL, Pannur

Vijayapuram Mandal, Chittoor District                  . Appellants/opp.parties

And

B.   Balaji @ Balaji Naidu

s/o Ranganatha naidu

Resident of Gangamabapuram Village

Vijayapuram mandal

Chittoor District                                             ..          Respondent/complainant

Counsel for the Appellants            :           M/s. P. Vinod Kumar

Counsel for the Respondent         :           M/s. B.Siva Shanker Rao

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Tuesday, the Thirteenth Day of August

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

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1.    This is an appeal preferred by the  opposite parties as against the  orders dated 15.02.2012  in CC 31/2011 on the file of the District Consumer Forum II, Chittoor District at Tirupati . For convenience sake, the parties as arrayed in the complaint are referred to as under :

2.    The brief facts of the complaint  are that  the complainant is the owner of Ac.4.04 cents of land at Nindra Mandal and he raised sugarcane  crop by spending Rs.40,000/- for  agricultural operations in the said land during relevant period. In spite of  his objection, the opposite parties have installed a transformer of 220 KW in the fields of the complainant for distributing power to the surrounding ryots for running their agricultural pump sets. The sugarcane crop raised by the complainant was  fully grown up and  fit for harvesting.  While the things thus stood, on 10.09.2010 there was sudden high voltage of 450 KW and as the supply being beyond the capacity of the transformer, there were flames/sparks  from the transfer and the said flames/sparks  fell on the sugarcane crop of the complainant and it resulted in damage to the entire crop on account of such fire accident. Immediately the fire department was informed about the fire accident but by the time they come and attended the entire sugarcane crop was subjected to fire and the complainant sustained loss of sugarcane in his fields weighing about 5oto 53 MTs and the then cost of the sugar cane per ton was Rs.200 to Rs.210 per M.T. and thus the complainant sustained Rs.6 lakhs and hence the complaint to direct the opposite parties to pay the said compensation, litigation costs of Rs.5000/- and also interest and compensation.

3.    .OPs  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter  are as under :          There was no such high voltage as contended by the complainant and that the transformer erected In the fields of the complainant is 25 KVA capacity but not 220 KVA. There was no such incident of heavy supply of 450 KVA  to the transformer and in the existing  system  it was  not possible. After the fire accident the fields of the complainant was inspected and found that the existing transformer and connected lines in the fields of the complainant are in good condition and there is no chance of short circuit at the transformer.  The Fire accident in the sugarcane fields of the complainant may be due to various reasons like leaving burnt cigars, match stick, used by the people working in the nearest fields. There i s no gross negligence on the part of the opposite parties and the complainant did not sustain any  loss and the question of payment of Rs. Six lakhs does not arise and thus prayed to dismiss the complaint with costs.

4.    Both sides  filed  evidence affidavit reiterating their respective pleadings  and  Ex. A-1 to A15  were marked on behalf of the complainant and Ex. B -1 andB2   were  marked for the OPs.

5.   Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part vide impugned orders and directed OPs to  pay a sum of Rs,4,04,000/- at 9% interest from 10.09.2010 till realization so also costs of Rs.5,000/-.

6.   Feeling aggrieved with the said order the unsuccessful OPs  filed this appeal on several grounds and mainly contended that the OPs have  installed transformer with a capacity of 25 KA and not 220 KVA and there was no high voltage of 450 KVA on   that date and at any other time and hence  the question of loss on account of the alleged  incident cannot be believed and that there was no possibility in the existing distribution to supply 450KVA to the transformer and that supply to the former transfer from the substation was only 11 KV and that the OP further enquired into the matter and unearthed the truth by obtaining a letter from the sugar factory wherein the complainant had sold 181.38  of sugarcane crop and got Rs.3,26,436/- for the year 2010-2011 and the said aspect clearly infers that the complainant had filed the complaint only to get illegal gains and that the accident was not due to short circuit but due to some other reasons and thus prayed to allow other appeal and set aside the impugned order.

7.   IA 1297/2012 filed by the OP was allowed on  7.3.2013 to receive a letter issued by Prudential Sugar Corporation Limited, Prudential nagar, Uppedu to the effect that the complainant supplied sugarcane to it and realized Rs.3,26,436  as additional evidence and it is marked as Ex. B3.

8.         Heard both sides   with reference to their   respective contentions in detail.

9.            Now the point for consideration is whether the order of the District

Forum is sustainable ?

10.        There is no dispute that the complainant is owning Ac.4.04 cents of land at Nindra Mandal in various survey numbers and during relevant time he raised sugarcane crop in it and also that a transformer was installed in the land of the complainant. However, the complainant contended that the said transformer was of 220 KV whereas the Ops contended that it was only 25 KVA and that question of high voltage of 450 KV passing through the transformer does not arise. The OPs did not file and prove any record in the said context  in support of its contentions. The self-serving evidence of the ADE is not helpful for it. It is much more so, when he admitted in the cross examination that  in Ex B2 reply notice there was no mention of the fact that there is no record to show the flow of high voltage was found to be released, as stated by him in chief examination. According to the Ops on receiving the complaint regarding fire accident   the fields of the complainant was inspected and found that the existing transformer and connected lines in the fields of the complainant were in good condition and there was  no chance of short circuit at the transformer.  No report of the said inspecting authority has been filed and proved.  Therefore the said plea could not be appreciated in their favour. In such circumstances, an inference is drawn that on account of high voltage  whatever may be the KV capacity of the transformer there were sparks from the transformer and the said sparks fell on the sugarcane crop of the complainant and that said crop was subjected to fire. ExA1 to A7 documents also support the contention of the complainant that the sugarcane  crop in his filed was subjected to fire on account of the said fire accident In such circumstances, the hypothetical contention of the opposite parties that it may be due to  left over  cigars and matchstick  also could not be appreciated. Possibility of the complainant setting fire has been ruled out by the Forum assigning the reasons. At what height the transformer was erected has not been placed on record and therefore the contention that it was erected at about 10 to 15 feet and therefore question of sparks falling on the sugarcane from such a height was not possible could not be appreciated.  The opposite party did not take any steps  to fence the area in and around the transformer to prevent accident fire being spread to the sugar cane crop. They even did not educate the agircultu8rsts in the said context to prevent him loss.  The said lapses on the part of Ops amount to negligence and deficiency in service.

11. In a  decision reported  in 2002 (2) ALD 4 (SC) between    M.P. Electricity Board Vs. Shail Kumar the Hon’ble Supreme Court observed that :

 “Even assuming that all such measures have been adopted, a person undertaking an activity involving  hazardous  or risk exposure to human life, is liable  under law of torts  to compensate for the injury suffered by  any other  person, irrespective of any negligence or carelessness on the part of the managers of such undertakings.  The basis of such liability is the foreseeable risk inherent in the very nature of such activity.  The liability case on such person is known, in law, as “strict liability”.

It differs from the liability which arises on account of the negligence or fault in this way i.e., the concept of  negligence comprehends  that the foreseeable hard could be avoided by taking reasonable precautions.  If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence  attributed.  But  such consideration is not relevant in cases of   strict liability  where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.”

On analogy the said decision is helpful for the complainant to sustain his claim for loss of sugarcane in his filed on account of negligence of Ops.

In  view of the said decision of the Hon’ble Apex court, the OP department is certainly liable to compensate the complainant in connection with the fire accident  to his fields because the Ops did not vigilant over the such supply of high voltage and its consequences nor prevented the same by taking recourse.  In similar case, this Commission in FA No. 1003/2009 vide its orders dt. 30.08.2011 awarded compensation to the complainant therein. Regarding the quantum, the District Forum made exercise with reference to various documents ie  Ex. A3, A12 and basing on the said documents and also the contention of the complainant that the expected yield was around 45 to 50 tons calculated the damage at Rs.4,44,400/- for 50 tons in Ac. 4.04 cents and Rs. .3,63,600/- for 45 tons at the rate of Rs.2000/- per ton in Ac.4.04 cents and arrived at Rs.4,04,000/- average damage and awarded the same and Rs.40,000/- claimed towards agricultural expenses were disallowed.

12. As already described supra Opposite party in this appeal, filed  IA 1297/2012 which was allowed on 7.3.2013 and Ex.B3 letter issued by Prudential Sugar Corporation Limited, Prudential nagar, Uppedu was received as additional evidence  wherein it is mentioned that the complainant supplied sugarcane to it and realized Rs.3,26,436/-  It was so allowed as counsel for the respondent complainant reported ‘no objection’. It is not the case of the complainant that the said sugar cane crop was from other fields than that of the fields claimed by him.

13. In the said Ex. B3  document  survey nos.125/1 and 126/10 are described as the lands of the complainant measuring Ac.3.17 cents from which the supplied sugarcane was raised. Admittedly as seen from  Ex. A5 certificate, the said two survey numbers are also the lands of the complainants in which he raised sugarcane crop.  In the second line from the top of the said Ex. B3 document it is mentioned that it was grower wise supply for the season 2011-12 and in the body of the letter dates of supply are shown from 29.11.2010 to 27.2.2011. In such circumstances, whether the sugarcane covered by the said document pertaining to the relevant season of fire accident or not has to be decided, so also whether the amount covered by the said document has to be deducted from and out of the amount payable to the complainant or not. Admittedly the complainant did not say that the said document is irrelevant and unconcerned  still in the larger interest of justice additional evidence from both sides is required for effective adjudication  of the said aspect and the material on record is not sufficient to decide the said aspect.  Therefore we are of the opinion that this is a fit case to set aside the impugned order and remit back the case for fresh disposal. However, the amount deposited by the respondents shall remain in the Account as it is till disposal of the case afresh by the Forum.

14. In the result, the appeal is disposed of setting aside the order of the District Forum and the case is remitted back to the District Forum for fresh disposal according to law after giving opportunity to both sides with reference to the document received as additional evidence. Parties shall bear their own costs of the appeal.

                                                                                    MEMBER

                                                                                    MEMBER

                                                                                    DATED  : 13.08.2013.